48 CFR Ch. 3 ( Edition)

(1)

48 CFR Ch. 3 (10–1–07 Edition) 370.504

bond is required only when a perform-ance or payment bond is required.

(d) Indian preference in employment, training and subcontracting. Contracts awarded under the Buy Indian Act are subject to the requirements of section 7(b) of the Indian Self-Determination and Education Assistance Act 25 U.S.C. 450e, which requires that preference be given to Indians in employment, train-ing, and subcontracting. The Indian Preference clause set forth in 352.270–2 shall be included in all Buy Indian so-licitations and resultant contracts. The Indian Preference Program clause set forth in 352.270–3 shall be used as specified in 370.202(b). All requirements set forth in subpart 370.2 which are ap-plicable to the instant Buy Indian ac-quisition shall be followed by the con-tracting officer, e.g., sections 370.204 and 370.205.

(e) Subcontracting. Not more than 50 percent of the work to be performed under a prime contract awarded pursu-ant to the Buy Indian Act shall be sub-contracted to other than Indian firms. For this purpose, work to be performed does not include the provision of mate-rials, supplies, or equipment.

(f) Wage rates. A determination of the minimum wage rates by the Secretary of Labor as required by the Davis- Bacon Act (40 U.S.C. 276a) shall be in-cluded in all contracts awarded under the Buy Indian Act for over $2,000 for construction, alteration, or repair, in-cluding painting and decorating, of public buildings and public works, ex-cept contracts with Indian tribes or public nonprofit organizations serving as governmental instrumentalities of an Indian tribe. The wage rate deter-mination is to be included in contracts with private business entities even if they are owned by an Indian tribe or a member of an Indian tribe and in con-nection with joint ventures with, or

subcontractors of, an Indian tribe or a public nonprofit organization serving as a governmental instrumentality of an Indian tribe.

370.504 Competition.

(a) Contracts awarded under the Buy Indian Act are subject to competition among Indians or Indian concerns to the maximum extent that the Con-tracting Officer determines is prac-ticable. When competition is deter-mined not to be practicable, a Jus-tification for Other than Full and Open Competition shall be prepared in ac-cordance with 306.303 and subsequently retained in the contract file.

(b) Solicitations must be synopsized and publicized in FedBizOpps at http:// www.fedbizopps.gov and copies of the synopses sent to the tribal office of the Indian tribal government directly con-cerned with the proposed acquisition as well as to Indian concerns and others having a legitimate interest. The syn-opsis must state that the acquisition is restricted to Indian firms under the Buy Indian Act.

[71 FR 76515, Dec. 20, 2006]

370.505 Responsibility determinations.

(a) A contract may be awarded under the Buy Indian Act only if it is first de-termined that the project or function to be contracted for is likely to be sat-isfactorily performed under that con-tract and the project or function is likely to be properly completed or maintained under that contract.

(b) The determination called for by paragraph (a) of this section, to be made prior to the award of a contract, will be made in writing by the con-tracting officer reflecting an analysis of the standards set forth in FAR 9.104– 1.

(2)

CHAPTER 4—DEPARTMENT OF AGRICULTURE

(Parts 400 to 499)

SUBCHAPTER A—GENERAL

Part Page

401 Agriculture Acquisition Regulation System ...

101

402 Definitions of words and terms ...

106

403 Improper business practices and personal conflicts

of interest ...

106 404 Administrative

matters ...

108

SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING

405 Publicizing contract actions ...

110 406 Competition

requirements ...

110 407 Acquisition

planning ...

111

408 Required sources of supplies and services ...

112 409 Contractor

qualifications ...

114 410 Market

research ...

116

411 Describing agency needs ...

116

412 Acquisition of commercial items ...

117

SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES

413 Simplified acquisition procedures ...

119 414 Sealed

bidding ...

119

415 Contracting by negotiation ...

120

416 Types of contracts ...

122

417 Special contracting methods ...

123 418 [Reserved]

SUBCHAPTER D—SOCIOECONOMIC PROGRAMS

419 Small business programs ...

124 420–421 [Reserved]

422 Application of labor laws to Government

acquisi-tions ...

125

423 Environment, energy and water efficiency,

renew-able energy technologies, occupational safety,

and drug-free workplace ...

127

424 Protection of privacy and freedom of information

129

(3)

48 CFR Ch. 4 (10–1–07 Edition)

Part Page

425 Foreign

acquisition ...

130

426 Other socioeconomic programs ...

131

SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS

427 Patents, data, and copyrights ...

132

428 Bonds and insurance ...

132 429 [Reserved]

430 Cost Accounting Standards Administration ...

133

431 Contract cost principles and procedures ...

134 432 Contract

financing ...

134

433 Protests, disputes and appeals ...

138

SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING

434 Major system acquisition ...

140

435 Research and development contracting ...

141

436 Construction and architect-engineer contracts ...

141 437 Service

contracting ...

144 438 [Reserved]

439 Acquisition of information technology ...

145 440 [Reserved]

441 Acquisition of utility services ...

146

SUBCHAPTER G—CONTRACT MANAGEMENT

442 Contract

administration ...

147 443–444 [Reserved]

445 Government

property ...

147 446 Quality

assurance ...

148 447 Transportation ...

148 448 [Reserved]

449 Termination of contracts ...

149

450 Extraordinary contractual actions ...

149 451 [Reserved]

SUBCHAPTER H—CLAUSES AND FORMS

452 Solicitation provisions and contract clauses ...

151

(4)

SUBCHAPTER A—GENERAL

PART 401—AGRICULTURE

ACQUISITION REGULATION SYSTEM

Sec.

401.000 Scope of part.

Subpart 401.1—Purpose, Authority, Issuance

401.101 Purpose. 401.103 Authority. 401.104 Applicability. 401.105 Issuance.

401.105–1 Publication and code arrangement. 401.105–2 Arrangement of regulations. 401.105–3 Copies.

401.106 OMB approval under the Paperwork Reduction Act.

401.170 Electronic access to regulatory in-formation.

Subpart 401.2—Administration

401.201 Maintenance of the FAR. 401.201–1 The two councils.

Subpart 401.3—Agency Acquisition Regulations

401.301 Policy.

401.304 Agency control and compliance pro-cedures.

401.370 Exclusions. 401.371 AGAR Advisories. 401.372 Departmental directives.

Subpart 401.4—Deviations From the FAR and AGAR

401.402 Policy.

401.403 Individual deviations. 401.404 Class deviations.

Subpart 401.6—Contracting Authority and Responsibilities

401.601 General.

401.602 Contracting officers.

401.602–3 Ratification of unauthorized com-mitments.

401.603 Selection, appointment, and termi-nation of appointment.

401.603–1 General.

AUTHORITY: 5 U.S.C. 301 and 40 U.S.C. 486(c).

SOURCE: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

401.000 Scope of part.

This part presents basic policies and general information about the

Depart-ment of Agriculture’s (USDA) Acquisi-tion RegulaAcquisi-tion, subsequently referred to as the AGAR. The AGAR is an inte-gral part of the Federal Acquisition Regulations System.

Subpart 401.1—Purpose, Authority,

Issuance

401.101 Purpose.

(a) The AGAR provides for the codi-fication and publication of uniform policies and procedures for acquisitions by contracting activities within USDA. (b) The purpose of the AGAR is to implement the Federal Acquisition Regulation (FAR), where further im-plementation is needed, and to supple-ment the FAR when coverage is needed for subject matter not covered in the FAR. The AGAR is not by itself a com-plete document, as it must be used in conjunction with the FAR.

401.103 Authority.

The AGAR and amendments thereto are issued under 5 U.S.C. 301 and 40 U.S.C. 486(c). The Senior Procurement Executive (SPE) has the delegated au-thority to promulgate Departmental acquisition regulations.

401.104 Applicability.

The FAR and AGAR apply to all USDA acquisitions of supplies and services (including construction) which obligate appropriated funds, unless otherwise specified in this chapter or excepted by law.

401.105 Issuance.

401.105–1 Publication and code ar-rangement.

(a) The AGAR is codified in the Code of Federal Regulations (CFR) as Chap-ter 4 of Title 48, Federal Acquisition Regulations System, to implement and supplement Chapter 1 which con-stitutes the FAR. Parts 400 through 499 have been assigned to USDA by the Of-fice of the Federal Register.

(b) The AGAR and its subsequent changes are published in:

(5)

48 CFR Ch. 4 (10–1–07 Edition) 401.105–2

(1) Daily issues of the FEDERAL REG -ISTER,

(2) Cumulative form in the CFR, and, (3) Electronic form on the USDA De-partmental Administration Procure-ment Homepage (see 401.170).

(c) Section 553(a)(2) of the Adminis-trative Procedure Act, 5 U.S.C. 553, provides an exception from the stand-ard public rulemaking procedures to the extent that the rule involves a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. In 1971, Secretary of Agriculture Hardin announced a voluntary partial waiver from the Administrative Procedure Act exception, and USDA agencies gen-erally are required to provide notice and an opportunity for public comment on proposed rules (36 FR 13804, July 24, 1971). The AGAR has been promulgated and may be revised from time to time in accordance with the rulemaking pro-cedures of the Administrative Proce-dure Act. The USDA also is required to publish for public comment procure-ment regulations in the FEDERAL REG -ISTER, pursuant to the Office of Federal Procurement Policy Act (41 U.S.C. 418b), and FAR 1.301.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]

401.105–2 Arrangement of regulations.

AGAR coverage parallels the FAR in format, arrangement, and numbering system. However, subdivisions below the section and subsection levels may not always correlate directly to FAR designated paragraphs and subpara-graphs.

401.105–3 Copies.

Copies of the AGAR published in CFR form may be purchased from the Super-intendent of Documents, Government Printing Office, Washington, D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.

401.106 OMB approval under the Pa-perwork Reduction Act.

The following OMB control numbers apply to USDA solicitations and speci-fied information collections within the AGAR:

AGAR segment OMB Con-trol No. 411.170 ... 0505–0014 415.2 ... 0505–0013 436.575 ... 0505–0011 437.110 ... 0505–0015 437.270 ... 0505–0016 452.211–1 ... 0505–0014 452.215–71 ... 0505–0013 452.236–75 ... 0505–0011 452.237–74 ... 0505–0015 452.237–76 ... 0505–0016 [61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52674, Sept. 30, 1999]

401.170 Electronic access to regulatory information.

The USDA Departmental Adminis-tration Procurement Homepage pro-vides access to the AGAR, AGAR amendments (circulars), AGAR Advisories, and other USDA procure-ment policy and guidance in electronic form. The Internet address for the Pro-curement Homepage is URL http:// www.usda.gov/procurement/.

[63 FR 26994, May 15, 1998, as amended at 70 FR 44, Jan. 3, 2005]

Subpart 401.2—Administration

401.201 Maintenance of the FAR. 401.201–1 The two councils.

(a) USDA’s representative on the Ci-vilian Agency Acquisition Council is designated by the SPE.

(b) The Procurement Policy Division will coordinate proposed FAR revisions within USDA. [61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]

Subpart 401.3—Agency

Acquisition Regulations

401.301 Policy.

(a) The SPE, subject to the authori-ties in 401.103 and FAR 1.301, may issue and publish Departmental regulations, that together with the FAR, constitute Department-wide policies, procedures, solicitation provisions, and contract clauses governing the contracting proc-ess or otherwise controlling the rela-tionship between USDA (including any of its contracting activities) and con-tractors or prospective concon-tractors.

(6)

Department of Agriculture 401.371 (b) Each designated head of a

con-tracting activity (HCA) is authorized to issue or authorize the issuance of, at any organizational level, internal guid-ance which does not have a significant effect beyond the internal operating procedures of the activity, or a signifi-cant cost or administrative impact on offerors or contractors. Internal guid-ance issued by contracting activities will not be published in the FEDERAL REGISTER. HCA’s shall ensure that the guidance, procedures, or instructions issued—

(1) Are consistent with the policies and procedures contained in this chap-ter;

(2) Follow the format, arrangement, and numbering system of this chapter to the extent practicable;

(3) Contain no material which dupli-cates, paraphrases, or is inconsistent with this chapter; and

(4) Are numbered and identified by use of alphabetical suffixes to the chapter number as follows:

4A [Reserved]

4B Agricultural Research Service. 4C Farm Service Agency.

4D Rural Development (mission area). 4E Food Safety and Inspection Service. 4F [Reserved]

4G Forest Service. 4H [Reserved]

4I Natural Resources Conservation Service.

4J [Reserved]

4K Food and Nutrition Service.

4L Animal and Plant Health Inspection Service.

4M [Reserved]

4N Departmental Administration. 4O–4P [Reserved]

4R Office of Inspector General. 4S [Reserved]

401.304 Agency control and compli-ance procedures.

(a) The AGAR System is under the direct oversight and control of the SPE, who is responsible for review and issuance of all Department-wide acqui-sition regulations published in the FEDERAL REGISTER to assure compli-ance with FAR part 1.

(b) The SPE is also responsible for re-view and issuance of unpublished,

De-partment-wide internal guidance under the AGAR System.

(c) HCA’s are responsible for estab-lishment and implementation of formal procedures for oversight and control of unpublished internal guidance issued within the contracting activity to im-plement FAR or AGAR requirements. These procedures shall be subject to the review and approval by the SPE.

(d) The SPE is responsible for evalu-ating coverage under the AGAR Sys-tem to determine applicability to other agencies and for recommending cov-erage to the FAR Secretariat for inclu-sion in the FAR.

(e) Recommendations for revision of existing FAR coverage or new FAR coverage shall be submitted by the HCA to the SPE for further action.

401.370 Exclusions.

Subject to the policies of FAR sub-part 1.3, certain USDA acquisition poli-cies and procedures may be excluded from the AGAR under appropriately justified circumstances, such as:

(a) Subject matter which is effective for a period less than 12 months.

(b) Subject matter which is insti-tuted on an experimental basis for a reasonable period.

(c) Acquisition procedures instituted on an interim basis to comply with the requirements of statute, regulation, Executive Order, OMB Circular, or OFPP Policy Letter.

401.371 AGAR Advisories.

The SPE may issue AGAR Advisories, consistent with the policies of the FAR and the AGAR, for the fol-lowing purposes:

(a) To communicate Department- wide policy and/or procedural guidance to contracting activities;

(b) To delegate to procurement offi-cials authority to make determina-tions or to take action to implement the policies of the FAR or the AGAR; and,

(c) To establish internal policy and procedures on an interim basis, prior to incorporation in the AGAR or in a De-partmental Directive.

(d) AGAR Advisories are only avail-able in electronic format on the USDA

(7)

48 CFR Ch. 4 (10–1–07 Edition) 401.372

Procurement Web site at http:// www.usda.gov/procurement/.

401.372 Departmental directives.

Subject to the policies of FAR 1.3, USDA from time to time may issue in-ternal directives to establish proce-dures, standards, guidance, or methods of performing duties, functions, or op-erations. Such directives include De-partmental Regulations (DR’s), Depart-mental Notices, and Secretary’s Memo-randa.

Subpart 401.4—Deviations From

the FAR and AGAR

401.402 Policy.

Requests for authority to deviate from the provisions of the FAR or the AGAR shall be submitted in writing as far in advance as the exigencies of the situation will permit. Each request for deviation shall contain the following:

(a) A statement of the deviation de-sired, including identification of the specific paragraph number(s) of the FAR and AGAR;

(b) The reason why the deviation is considered necessary or would be in the best interest of the Government;

(c) If applicable, the name of the tractor and identification of the con-tract affected;

(d) A statement as to whether the de-viation has been requested previously and, if so, circumstances of the pre-vious request;

(e) A description of the intended ef-fect of the deviation;

(f) A statement of the period of time for which the deviation is needed; and (g) Any pertinent background infor-mation which will contribute to a full understanding of the desired deviation.

401.403 Individual deviations.

In individual cases, deviations from either the FAR or the AGAR will be authorized only when essential to ef-fect a necessary acquisition or where special circumstances make such devi-ations clearly in the best interest of the Government. Except for cost prin-ciples, HCA’s may approve individual deviations from the AGAR, after

co-ordinating with the General Counsel and the SPE. No deviations from the FAR or AGAR may be authorized at the contracting office level. A copy of each deviation and its supporting docu-mentation shall be provided to the SPE. Deviations from the FAR shall not be made unless such action is au-thorized by the SPE after consultation with the Office of the General Counsel and any other appropriate office, on the basis of a written justification stating clearly the special cir-cumstances involved.

401.404 Class deviations.

Where deviations from the FAR or AGAR are considered necessary for classes of contracts, requests for au-thority to deviate shall be submitted in writing to the SPE for approval. The SPE may authorize class deviations from the FAR without consulting the Chairperson of the Civilian Agency Ac-quisition Council where urgency pre-cludes consultation. The SPE shall subsequently inform the Chairperson of the Civilian Agency Acquisition Coun-cil of the deviation including the cir-cumstances under which it was re-quired.

Subpart 401.6—Contracting

Authority and Responsibilities

401.601 General.

(a) The authority and responsibility vested in the Secretary to manage USDA’s acquisition function is dele-gated through the Assistant Secretary for Administration to the SPE. This broad authority includes, but is not limited to, the following responsibil-ities:

(1) Prescribing and publishing De-partmental acquisition policies, regu-lations, and procedures.

(2) Taking any necessary actions con-sistent with policies, regulations, and procedures with respect to purchases, contracts, leases, and other trans-actions.

(3) Designating contracting officers. (4) Establishing clear lines of con-tracting authority.

(5) Evaluating and monitoring the performance of USDA’s acquisition sys-tem.

(8)

Department of Agriculture 401.602–3 (6) Managing and enhancing career

development of the contracting work force.

(7) Participating in the development of Government-wide acquisition poli-cies, regulations, and standards; and determining specific areas where gov-ernment-wide performance standards should be established and applied.

(8) Determining areas of Department- unique standards and developing unique Department-wide standards.

(9) Certifying to the Secretary that the acquisition system meets approved standards.

(b) The SPE may delegate con-tracting authority to the Heads of Con-tracting Activities (HCA’s) and the re-sponsibility to manage their acquisi-tion funcacquisi-tion.

(c) Unless prohibited by the FAR, the AGAR, or by other applicable statutes and regulations, the SPE may redele-gate to HCA’s the authority to make determinations as the agency head in order to implement the policies and procedures of the FAR. Such delega-tions shall be in writing, but need not be published.

(d) Unless prohibited by the FAR, the AGAR, or by other applicable statutes or regulations, each HCA may des-ignate one individual from the con-tracting activity to carry out the func-tions of the HCA (HCAD). The HCAD may exercise all authority delegated to the HCA.

401.602 Contracting officers.

401.602–3 Ratification of unauthorized commitments.

(a) Definitions. Ratification, as used in this section, means the signed, docu-mented action taken by an authorized official to approve and sanction a pre-viously unauthorized commitment.

Unauthorized commitment, as used in this section, means an agreement made by a Government representative who lacked the authority to enter into a contract on behalf of the Government. (b) Policy. The HCA may delegate ratification authority to the chief of the contracting office.

(c) Procedure. Whenever an official of the cognizant contracting activity who is authorized to ratify unauthorized commitments learns that a person or

firm has assumed work as a result of an unauthorized commitment, that of-ficial shall take the following actions:

(1) Immediately inform any person who is performing work as a result of an unauthorized commitment that the work is being performed at that per-son’s risk;

(2) Inform the individual who made the unauthorized commitment of the seriousness of the act and the possible consequences;

(3) Ensure that the individual who made the unauthorized commitment furnishes all records and documents concerning the commitment and a complete, written statement of facts, including, but not limited to: a state-ment as to why a contracting officer was not used; why the vendor was se-lected and a list of sources considered; a description of work to be performed or products to be furnished; the esti-mated or agreed price; whether an ap-propriation is available for the work; and whether performance has begun. Under exceptional circumstances, such as when the individual who made the unauthorized commitment is no longer available to attest to the cir-cumstances of the unauthorized com-mitment, the ratifying official may waive these requirements; and

(4) Decide whether ratification is proper and proceed as follows:

(i) If ratification is not justifiable, provide the cognizant program office, contracting office, and the unauthor-ized contractor with an explanation of the decision not to ratify.

(ii) If ratification appears adequately justified, ratify the action and retain or assign the contract to a successor contracting officer if necessary.

(iii) Maintain related approval, decisional, and background documents in the contract file for audit purposes. (iv) Notify the cognizant program su-pervisor or line officer about the final disposition of the case; the notification may include a recommendation that the unauthorized commitment should be further considered a violation of USDA’s employee conduct regulations.

(9)

48 CFR Ch. 4 (10–1–07 Edition) 401.603

401.603 Selection, appointment, and termination of appointment.

401.603–1 General.

An HCA may delegate contracting authority to the extent authorized by the SPE in a general delegation of ac-quisition authority, by appointing qualified individuals as contracting of-ficers, in accordance with the USDA Contracting Officer Warrant System, Departmental Regulation 5001–1.

PART 402—DEFINITIONS OF WORDS

AND TERMS

Sec.

402.000 Scope of part.

Subpart 402.1—Definitions

402.101 Definitions.

402.000 Scope of part.

As used throughout this chapter, the following words and terms are used as defined in this subpart unless the con-text in which they are used clearly re-quires a different meaning, or a dif-ferent definition is prescribed for a par-ticular part or portion of a part.

Subpart 402.1—Definitions

402.101 Definitions.

Acquisition official means an indi-vidual who has been delegated author-ity to manage or to exercise acquisi-tion funcacquisi-tions and responsibilities.

Agency head or Head of the Agency

means the Secretary of Agriculture, Deputy Secretary, or the Assistant Secretary for Administration.

Head of the contracting activity (HCA) means the official who has overall re-sponsibility for managing the con-tracting activity (i.e., Chief, Forest Service; Administrator, Agricultural Research Service; etc.), or the indi-vidual designated by such an official to carry out the functions of the HCA.

Senior Procurement Executive (SPE) means the agency official appointed as such by the head of the agency pursu-ant to Executive Order 12931. The

Di-rector, Office of Procurement and Property Management, has been des-ignated as the USDA SPE.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26994, May 15, 1998]

PART 403—IMPROPER BUSINESS

PRACTICES AND PERSONAL

CONFLICTS OF INTEREST

Subpart 403.1—Safeguards Sec. 403.101 Standards of conduct. 403.101–3 Agency regulations. 403.104 Procurement integrity. 403.104–5 [Reserved]

403.104–7 Violations or possible violations.

Subpart 403.2—Contractor Gratuities to Government Personnel

403.203 Reporting suspected violations of the gratuities clause.

403.204 Treatment of violations.

Subpart 403.3—Reports of Suspected Antitrust Violations

403.303 Reporting suspected antitrust viola-tions.

Subpart 403.4—Contingent Fees

403.405 Misrepresentations or violations of the Covenant Against Contingent Fees.

Subpart 403.5—Other Improper Business Practices

403.502 Subcontractor kickbacks.

Subpart 403.6—Contracts With Govern-ment Employees or Organizations Owned or Controlled by Them

403.602 Exceptions.

403.603 Responsibilities of the contracting officer.

Subpart 403.8—Limitation on the Payment of Funds To Influence Federal Transactions

403.806 Processing suspected violations AUTHORITY: 5 U.S.C. 301 and 40 U.S.C. 486(c).

(10)

Department of Agriculture 403.405

Subpart 403.1—Safeguards

403.101 Standards of conduct. 403.101–3 Agency regulations.

(a) The standards of conduct for USDA procurement officials are the uniform standards established by the Office of Government Ethics in 5 CFR Part 2635, Standards of Ethical Conduct for Employees of the Executive Branch,

and FAR 3.104, Procurement integrity. (b) Procurement officials and other employees who require advice con-cerning the application of standards of conduct to any acquisition issue shall obtain ethics advisory opinions from ethics advisory officials in their agen-cy personnel offices.

403.104 Procurement integrity. 403.104–5 [Reserved]

403.104–7 Violations or possible viola-tions.

The contracting officer shall forward information concerning any violation or possible violation of the Procure-ment Integrity Act (41 U.S.C. 423) to the chief of the contracting office. [61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998. Redesignated and amended at 70 FR 44, Jan. 3, 2005]

Subpart 403.2—Contractor

Gratu-ities to Government

Per-sonnel

403.203 Reporting suspected violations of the gratuities clause.

A suspected violation of the contract clause, FAR 52.203–3, Gratuities, shall be reported immediately to the cog-nizant contracting officer in writing, stating the circumstances surrounding the incident(s), the date(s), and names of all parties involved. The contracting officer shall review the report for com-pleteness, add any additional informa-tion deemed necessary and a rec-ommendation for action, and submit the report to the HCA.

403.204 Treatment of violations.

The HCA shall review the report and consult with the Offices of General Counsel and Inspector General to de-termine whether further action should

be pursued. If it is found that the facts and circumstances warrant further ac-tion, the HCA shall give the contractor a formal written notice which summa-rizes the reported violation and affords the contractor the opportunity to make a written or oral response within a reasonable, specified period after re-ceipt of the notice. The notice shall be sent by certified mail with return re-ceipt requested. Oral presentations shall follow the procedures outlined in FAR 3.204(b). The HCA shall furnish copies of any adverse determination to the contracting officer and the Depart-ment Debarring Officer for their subse-quent considerations under FAR 3.204(c)(1) and (2), respectively.

Subpart 403.3—Reports of

Suspected Antitrust Violations

403.303 Reporting suspected antitrust

violations.

Contracting officers shall report the circumstances of suspected violations of antitrust laws to the Office of In-spector General in accordance with procedures in Departmental Regula-tions (1700 series).

Subpart 403.4—Contingent Fees

403.405 Misrepresentations or

viola-tions of the Covenant Against Con-tingent Fees.

(a) A suspected misrepresentation or violation of the Covenant Against Con-tingent Fees shall be documented in writing by the contracting officer and reported immediately to the chief of the contracting office. The chief of the contracting office shall determine if a violation has occurred and report any violation to the Office of Inspector General. The chief of the contracting office shall take action in accordance with FAR 3.405(b).

(b) If the chief of the contracting of-fice decides to refer the case to the De-partment of Justice, it should be re-ferred through the Office of Inspector General with a copy of the report and referral submitted through the HCA to the Senior Procurement Executive. [61 FR 53646, Oct. 15, 1996. Redesignated and amended at 70 FR 44, Jan. 3, 2005]

(11)

48 CFR Ch. 4 (10–1–07 Edition) 403.502

Subpart 403.5—Other Improper

Business Practices

403.502 Subcontractor kickbacks.

Contracting officers shall report the circumstances of suspected violations of the Anti-Kickback Act (41 U.S.C. 51– 58) to the Office of Inspector General in accordance with procedures in Depart-mental Regulations (1700 series). [61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]

Subpart 403.6—Contracts With

Government Employees or

Organizations Owned or

Con-trolled by Them

403.602 Exceptions.

The HCA is authorized to accept a contract from the policy in FAR 3.601.

403.603 Responsibilities of the con-tracting officer.

The contracting officer, when re-questing authorization under 403.602, shall prepare a written determination and findings for the signature of the HCA. The determination shall docu-ment compliance with FAR 3.603, speci-fying the compelling reason(s) for award, and shall be placed in the con-tract file.

Subpart 403.8—Limitation on the

Payment of Funds To

Influ-ence Federal Transactions

403.806 Processing suspected

viola-tions.

Suspected violations of the require-ments of 31 U.S.C. 1352 shall be referred to the Office of Inspector General in ac-cordance with procedures in Depart-mental Regulations (1700 series).

PART 404—ADMINISTRATIVE

MATTERS

Subpart 404.2—Contract Distribution

Sec.

404.203 Taxpayer identification information.

Subpart 404.4—Safeguarding Classified Information Within Industry

404.403 Responsibilities of contracting offi-cers.

Subpart 404.6—Contract Reporting

404.601 [Reserved]

404.602 Federal Procurement Data System.

Subpart 404.8—Government Contract Files

404.870 Document numbering system.

Subpart 404.11—Central Contractor Registration

404.1103 Procedures.

Subpart 404.70—Precontract Notices

404.7001 Solicitation provision.

Subpart 404.2—Contract

Distribution

404.203 Taxpayer identification infor-mation.

(a) If the contractor furnishes tax-payer identification number (TIN) and type of organization information pur-suant to solicitation provision 52.204–3 or 52.212–3, and the USDA Office of the Chief Financial Officer, Controller Op-erations Division, New Orleans will be the payment office, that information will be entered into the Foundation Fi-nancial Information System (FFIS) in accordance with FFIS Vendor Table Maintenance Procedures set forth in FFIS Bulletins issued by the Office of the Chief Financial Officer and AGAR Advisories issued by the Office of Pro-curement and Property Management.

(b) Separate submission of the TIN or type of organization information, in accordance with 52.204–3 or 52.212–3, is not required for contractors registered in the Central Contractor Registration (CCR) database.

(12)

Department of Agriculture 404.7001

Subpart 404.4—Safeguarding

Classified Information Within

Industry

404.403 Responsibilities of contracting officers.

When a proposed solicitation is like-ly to require access to classified infor-mation, the contracting officer shall consult with the Information Security Staff, Personnel and Document Secu-rity Division, Office of Procurement and Property Management, regarding the procedures that must be followed. [70 FR 44, Jan. 3, 2005]

Subpart 404.6—Contract Reporting

404.601 [Reserved]

404.602 Federal Procurement Data

System.

(a) Contracting activities shall report contract actions into the Federal Pro-curement Data System in accordance with the instructions issued or distrib-uted by the SPE.

(b) The unique identifier for each contract action reported to the Federal Procurement Data System shall begin with the two-letter USDA Agency Pre-fix ‘‘AG’’.

[70 FR 44, Jan. 3, 2005]

Subpart 404.8—Government

Contract Files

404.870 Document numbering system.

The SPE shall issue AGAR Advisories to establish and maintain a numbering system for USDA contracts, modifications, and delivery/task or-ders. USDA contracting offices shall number contracts, modifications, and orders in accordance with this num-bering system.

[70 FR 44, Jan. 3, 2005]

Subpart 404.11—Central

Contractor Registration

404.1103 Procedures.

(a) Contracting officers and other USDA employees shall not enter infor-mation into the Central Contractor Registration (CCR) database on behalf of prospective contractors. Prospective contractors who are unable to register on-line at the CCR Web site should be advised to submit a written application to CCR for registration into the CCR database. USDA employees may assist prospective contractors by downloading the registration template, CCR handbook, and other information from the CCR Web site and providing copies of that material to requesters. Written applications for registration may be submitted to Department of Defense Central Contractor Registra-tion, 74 Washington Ave., Suite 7, Bat-tle Creek, MI 49017–3084.

(b) Verification that the prospective contractor is registered in the CCR database shall be done via the CCR Internet Web site http://www.ccr.gov.

This verification process using the CCR Web site applies both to acquisitions executed using USDA legacy procure-ment systems and the USDA Inte-grated Acquisition System.

(c) AGAR Advisories issued by the Office of Procurement and Property Management will address internal pro-cedures for integration of contractor information in the CCR database with the USDA FFIS payment system. [70 FR 44, Jan. 3, 2005]

Subpart 404.70—Precontract

Notices

404.7001 Solicitation provision.

The contracting officer shall insert the provision at 452.204–70, Inquiries, in all solicitations.

(13)

SUBCHAPTER B—COMPETITION AND ACQUISITION

PLANNING

PART 405—PUBLICIZING

CONTRACT ACTIONS

Subpart 405.3—Synopses of Contract

Awards

Sec.

405.303 Announcement of contract awards.

Subpart 405.4—Release of Information

405.403 Requests from Members of Congress. 405.404 Release of long-range acquisition

es-timates.

405.404–1 Release procedures.

Subpart 405.5—Paid Advertisements

405.502 Authority.

Subpart 405.3—Synopses of

Contract Awards

405.303 Announcement of contract

awards.

Contracting officers shall make in-formation available on any contract award with an estimated total value over $1 million (including options) to their agency congressional liaison of-fice in sufficient time for the agency to announce it by 5:00 p.m. Washington, DC time on the day of award. The agen-cy congressional liaison office shall, concurrent with the public announce-ment, provide the award announcement information to the USDA Congres-sional Relations Office.

Subpart 405.4—Release of

Information

405.403 Requests from Members of

Congress.

The head of the contracting activity (HCA) is the agency head designee pur-suant to FAR 5.403.

405.404 Release of long-range acquisi-tion estimates.

405.404–1 Release procedures.

(a) HCA’s shall establish written pro-cedures to control the release of long- range acquisition estimates, as author-ized under FAR 5.404–1.

(b) Classified information shall not be released without the approval of the Information Security Staff, Personnel and Document Security Division, Of-fice of Procurement and Property Man-agement. Departmental Manuals and Regulations (3400 series) contain guid-ance on classified information.

Subpart 405.5—Paid

PART 406—COMPETITION

REQUIREMENTS

Subpart 406.2—Full and Open Competition After Exclusion of Sources

Sec.

406.202 Establishing or maintaining alter-native sources.

Subpart 406.3—Other Than Full and Open Competition

406.302 Circumstances permitting other than full and open competition.

406.302–70 Otherwise authorized by law.

Subpart 406.5—Competition Advocates

(14)

Department of Agriculture 407.503 AUTHORITY: 5 U.S.C. and 40 U.S.C. 486(c).

Subpart 406.2—Full and Open

Competition After Exclusion of

Sources

406.202 Establishing or maintaining alternative sources.

The Senior Procurement Executive is authorized to make determinations pursuant to FAR 6.202(a) and sign the determination and findings required by FAR 6.202(b).

Subpart 406.3—Other Than Full

and Open Competition

406.302 Circumstances permitting

other than full and open competi-tion.

406.302–70 Otherwise authorized by

law.

(a) Authority. Section 1472 of the Na-tional Agricultural Research, Exten-sion, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act) authorizes the Secretary of Agriculture to award con-tracts, without competition, to further research, extension, or teaching pro-grams in the food and agricultural sciences.

(b) Limitations. The use of this au-thority is limited to those instances where it can be determined that con-tracting without full and open com-petition is in the best interest of the Government and necessary to the ac-complishment of the research, exten-sion, or teaching program. Therefore:

(1) Contracts under the authority of the Act shall be awarded on a competi-tive basis to the maximum practicable extent.

(2) When full and open competition is not deemed appropriate, the con-tracting officer shall make a written justification on a case-by-case basis in accordance with procedures in FAR 6.303 and 6.304.

Subpart 406.5—Competition

Advocates

406.501 Requirements.

(a) The Chief, Procurement Policy Division, Office of Procurement and Property Management, has been des-ignated as the Competition Advocate for USDA.

(b) Each HCA shall designate a com-petition advocate for the contracting activity. The HCA shall forward a copy of the designation memorandum to the Competition Advocate for USDA. [70 FR 45, Jan. 3, 2005]

PART 407—ACQUISITION

PLANNING

Subpart 407.1—Acquisition Plans

Sec.

407.103 Agency-head responsibilities. 407.170 Advance acquisition plans.

Subpart 407.3 [Reserved]

Subpart 407.5—Inherently Governmental Functions

407.503 Policy.

AUTHORITY: 5 U.S.C. 301 and 40 U.S.C. SOURCE: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

Subpart 407.1—Acquisition Plans

407.103 Agency-head responsibilities.

Heads of Contracting Activities (HCA’s) shall develop procedures to comply with FAR 7.103.

407.170 Advance acquisition plans.

Each HCA shall maintain an advance acquisition planning system.

[70 FR 45, Jan. 3, 2005]

Subpart 407.3

[

Reserved

]

Subpart 407.5—Inherently

Governmental Functions

407.503 Policy.

(a) HCA’s shall establish procedures to ensure that requesting activities

(15)

48 CFR Ch. 4 (10–1–07 Edition) Pt. 408

provide the written determination re-quired by FAR 7.503(e), when submit-ting requests for procurement of serv-ices.

(b) In the event of a disagreement as to whether the functions to be per-formed are inherently governmental, the HCA may refer the matter to the Senior Procurement Executive (SPE) for resolution. When submitting dis-agreements to the SPE for resolution the HCA shall provide a summary of the areas of disagreement, supported by the following:

(1) The HCA’s assessment of whether the services are ‘‘inherently govern-mental’’;

(2) The basis for that assessment (in-clude references to the definition and policy in FAR subpart 7.5 and/or Office of Federal Procurement Policy letter 92–1);

(3) A copy of the statement of work; and,

(4) The requesting activity’s written determination in accordance with FAR 7.503(e).

(c) Such disagreements shall be re-solved prior to issuance of the solicita-tion.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998]

PART 408—REQUIRED SOURCES OF

SUPPLIES AND SERVICES

Subpart 408.4—Federal Supply Schedules

Sec.

408.404 Using schedules. 408.404–3 Requests for waivers.

Subpart 408.7—Acquisition From Nonprofit Agencies Employing People Who Are Blind or Severely Disabled

408.701 Definitions. 408.705 Procedures.

408.705–2 Direct order process. 408.705–3 Allocation process. 408.705–4 Compliance with orders. 408.706 Purchase exemptions. 408.707 Prices.

408.711 Quality complaints. 408.712 Specification changes.

408.714 Communications with the central nonprofit agencies and the Committee.

Subpart 408.8—Acquisition of Printing and Related Supplies

408.802 Policy.

Subpart 408.11—Leasing of Motor Vehicles

408.1103 Contract requirements.

Subpart 408.4—Federal Supply

Schedules

408.404 Using schedules. 408.404–3 Requests for waivers.

A copy of the request for a waiver and the approval shall be placed in the contract file to support the acquisition of items off schedule.

Subpart 408.7—Acquisition From

Nonprofit Agencies Employing

People Who Are Blind or

Se-verely Disabled

EDITORIALNOTE: Nomenclature changes to subpart 408.7 appear at 70 FR 45, Jan. 3, 2005.

408.701 Definitions.

Committee Member is the Presidential appointee representing USDA as a member of the Committee for Purchase from People Who Are Blind or Severely Disabled.

Organization head is the Under Sec-retary or Assistant SecSec-retary of a mis-sion area or the head of a USDA staff office.

[70 FR 45, Jan. 3, 2005]

408.705 Procedures.

(a) The organization head shall ap-point one person as Javits-Wagner- O’Day Act (JWOD) Liaison to represent the organization and to coordinate the organization’s actions with the Com-mittee Member.

(b) JWOD advocates may represent more than one organization. Liaisons need not be acquisition officials.

(c) The organization head shall issue and maintain a performance plan to promote and enhance the organiza-tion’s acquisitions from JWOD partici-pating nonprofit agencies.

(16)

Department of Agriculture 408.802 (1) Announce the organization’s

sup-port for the JWOD Act;

(2) Establish a promotion program for the products and services provided by the JWOD participating nonprofit agencies;

(3) Provide for the JWOD Liaison’s role in acquisition planning;

(4) Establish measurable program goals for growth or other accomplish-ment in the organization’s JWOD pro-gram actions; and

(5) Establish an awards program for successful participation in the JWOD program.

408.705–2 Direct order process.

(a) The chief of a contracting office may apply to a central nonprofit agen-cy for authorization to order specific supplies or services directly from a JWOD participating nonprofit agency.

(b) A copy of the application should be provided to the JWOD Liaison who will inform the USDA Committee Member.

408.705–3 Allocation process.

(a) The chief of a contracting office may apply to a central nonprofit agen-cy for a production allocation of spe-cific supplies or services to a JWOD participating nonprofit agency.

(b) A copy of the application should be provided to the JWOD Liaison who will inform the USDA Committee Member.

408.705–4 Compliance with orders.

Prior to attempting to resolve a fail-ure to perform by a participating non-profit agency with the Committee, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.

408.706 Purchase exemptions.

Prior to applying to the Committee for a purchase exemption, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.

408.707 Prices.

Prior to applying for a price revision, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.

408.711 Quality complaints.

Prior to attempting to resolve a com-plaint regarding the quality of goods or services provided by participating non-profit agency with the Committee, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.

408.712 Specification changes.

Prior to providing 90-days advance notification to the Committee on ac-tions that affect supplies and services on the Procurement List, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.

408.714 Communications with the cen-tral nonprofit agencies and the Committee.

Any matter requiring referral to the Committee shall be provided to the JWOD Liaison who will coordinate the matter with the Committee Member.

Subpart 408.8—Acquisition of

Printing and Related Supplies

408.802 Policy.

(a) The Director, Office of Commu-nications (OC) has been designated as the central printing authority in USDA, with the authority to represent the USDA before the Joint Committee on Printing (JCP), the Government Printing Office, and other Federal and State agencies on all matters related to printing.

(b) Prior to contracting for any of the items defined in FAR 8.801, the con-tracting officer shall verify that the requisite approval has been received by the publication liaison officer or req-uisitioner.

(c) The approval from OC or the ap-proval authority designated by OC shall be maintained in the contract file.

(17)

48 CFR Ch. 4 (10–1–07 Edition) 408.1103

Subpart 408.11—Leasing of Motor

Vehicles

408.1103 Contract requirements.

If the requirement includes the need for the vendor to provide operational maintenance such as fueling, lubrica-tion, or other fluid changes or replen-ishment, the contracting officer shall include in the contract:

(1) A requirement for the use of fluids and lubricants containing the max-imum available amounts of recovered materials, and alternative fuels when-ever available; and

(2) A preference for retreaded tires meeting the Federal retread specifica-tions, tires with the maximum recov-ered material content, or retreading services for the tires on the vehicle. [70 FR 45, Jan. 3, 2005]

PART 409—CONTRACTOR

QUALIFICATIONS

Subpart 409.4—Debarment, Suspension and Ineligibility

Sec.

409.403 Definitions.

409.404 List of parties excluded from Federal procurement and nonprocurement pro-grams.

409.405 Effect of listing.

409.405–1 Continuation of current contracts. 409.405–2 Restrictions on subcontracting. 409.406 Debarment.

409.406–3 Procedures. 409.407 Suspension. 409.407–3 Procedures.

Subpart 409.5—Organizational and Consultant Conflicts of Interest

409.503 Waiver.

AUTHORITY: 40 U.S.C. 121, 41 U.S.C. 421. SOURCE: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

Subpart 409.4—Debarment,

Suspension and Ineligibility

409.403 Definitions.

Debarring official. Pursuant to the Secretary’s delegations of authority in 7 CFR 2.24, the Senior Procurement Ex-ecutive (SPE) is designated as the de-barring official (Department Dede-barring Officer) with the following exceptions:

(a) For commodity contracts awarded on behalf of the Commodity Credit Cor-poration (CCC), the Executive Vice President, CCC, or his designee is des-ignated as the debarring official pursu-ant to 7 CFR part 1407.

(b) For contracts awarded under the School Lunch and Surplus Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department Debarring Offi-cer has delegated debarring authority to the Agricultural Marketing Service (AMS).

[63 FR 26995, May 15, 1998]

409.404 List of parties excluded from Federal procurement and non-procurement programs.

The Department Debarring Officer is USDA’s single point of contact with GSA for debarment and suspension ac-tions taken under this subpart. The de-barring official for AMS shall notify the Department Debarring Officer of each debarment and suspension action by promptly submitting a copy of the debarment or suspension notice and any later changes to the debarment or suspension status. The Department De-barring Officer will forward a copy of each notice to GSA for inclusion in the Government-wide list.

409.405 Effect of listing.

Compelling reasons are considered to be present where failure to contract with the debarred or suspended con-tractor would seriously harm the agen-cy’s programs and prevent accomplish-ment of mission requireaccomplish-ments. The SPE is authorized to make the deter-minations under FAR 9.405. Requests for such determinations shall be sub-mitted through the head of the con-tracting activity (HCA) to the SPE.

409.405–1 Continuation of current con-tracts.

The HCA is authorized to make the determinations under FAR 9.405–1.

409.405–2 Restrictions on

subcon-tracting.

The HCA is authorized to approve subcontracts with debarred or sus-pended subcontractors under FAR 9.405–2.

(18)

Department of Agriculture 409.503 409.406 Debarment.

409.406–3 Procedures.

(a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any informa-tion which may be sufficient cause for debarment, the case shall be imme-diately referred through the HCA to the debarring official. The case must be accompanied by a complete state-ment of the facts (including a copy of any criminal indictments, if applica-ble) along with a recommendation for action. Where the statement of facts indicates the irregularities to be pos-sible criminal offenses, or for any other reason further investigation is consid-ered necessary, the matter shall be re-ferred to the HCA who should consult with the Office of Inspector General to determine if further investigation is required prior to referring to the debar-ring official.

(b) Decision-making process. If, after reviewing the recommendations and consulting with the Office of Inspector General and Office of the General Counsel, as appropriate, the debarring official determines debarment is justi-fied, the debarring official shall ini-tiate the proposed debarment in ac-cordance with FAR 9.406–3(c) and no-tify the HCA of the action taken.

(c) Fact-finding proceeding. For ac-tions listed under FAR 9.406–3(b)(2), the contractor shall be given the oppor-tunity to appear at an informal hear-ing. The hearing should be held at a lo-cation and time that is convenient to the parties concerned, if at all possible. The contractor and any specifically named affiliates may be represented by counsel or any duly authorized rep-resentative. Witnesses may be called by either party. The proceedings shall be conducted expeditiously and in such a manner that each party will have an opportunity to present all information considered pertinent to the proposed debarment. The contractor shall be provided a copy of a transcript of the proceedings under the conditions estab-lished in FAR 9.406–3(b)(2)(ii).

409.407 Suspension. 409.407–3 Procedures.

(a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any informa-tion which may be sufficient cause for suspension, the case shall be imme-diately referred through the HCA to the debarring official. The case must be accompanied by a complete state-ment of the facts along with a rec-ommendation for action. Where the statement of facts indicates the irreg-ularities to be possible criminal of-fenses, or for any other reason further investigation is considered necessary, the matter shall be referred to the HCA who should consult with the Office of Inspector General to determine if fur-ther investigation is required prior to referring it to the debarring official.

(b) Decision-making process. If, after reviewing the recommendations and consulting with the Office of Inspector General and Office of the General Counsel, as appropriate, the debarring official determines suspension is justi-fied, the debarring official shall ini-tiate the proposed suspension in ac-cordance with FAR 9.407–3(c) and no-tify the HCA of the action taken.

(c) Fact-finding proceedings. For ac-tions listed under FAR 9.407–3(b)(2), the contractor shall be given the oppor-tunity to appear at an informal hear-ing, similar in nature to the hearing for debarments as discussed in 409.406– 3(c).

Subpart 409.5—Organizational

and Consultant Conflicts of

In-terest

409.503 Waiver.

(a) The HCA, on a non-delegable basis, is authorized to waive any gen-eral rule or procedure in FAR 9.5 when in the Government’s interest.

(b) Each request for waiver shall in-clude:

(1) The general rule or procedure pro-posed to be waived;

(2) An analysis of the potential con-flict, including the benefits and det-riments to the Government and pro-spective contractors;

(19)

48 CFR Ch. 4 (10–1–07 Edition) Pt. 410

(3) A discussion of why the conflict cannot be avoided, neutralized, or miti-gated; and

(4) Advice of counsel obtained under FAR 9.504(b).

PART 410—MARKET RESEARCH

Sec.

410.001 Policy. 410.002 Procedures.

AUTHORITY: 5 U.S.C. 301 and 40 U.S.C. 486(c) SOURCE: 70 FR 45, Jan. 3, 2005, unless other-wise noted.

410.001 Policy.

In addition to those uses listed in FAR 10.001, agencies must use the re-sults of market research to—

(a) Ensure the minimum use of haz-ardous or toxic materials;

(b) Ensure the maximum use of biobased products and biofuels; and

(c) Identify products and services on or eligible for addition to the Javits- Wagner-O’Day Act Procurement List in order to achieve USDA’s goal to in-crease participation in this program.

410.002 Procedures.

Market research must include ob-taining information on the commercial quality assurance practices as an alter-native for Government inspection and testing prior to tender for acceptance.

PART 411—DESCRIBING AGENCY

NEEDS

Subpart 411.1—Selecting and Developing Requirements Documents

Sec.

411.101 Order of precedence for requirements documents.

411.103 Market acceptance.

411.106 Purchase descriptions for service contracts.

411.170 Brand name or equal.

411.171 Solicitation provisions and contract clauses.

Subpart 411.2—Using and Maintaining Requirements Documents

411.202 Maintenance of standardization doc-uments.

Subpart 411.4—Delivery or Performance Schedules

411.404 Contract clauses.

Subpart 411.6—Priorities and Allocations

411.600 Scope of subpart.

Subpart 411.1—Selecting and

De-veloping Requirements

Docu-ments

411.101 Order of precedence for re-quirements documents.

(a) Office of Management and Budget (OMB) Circular A–119 establishes a Fed-eral policy requiring the use of vol-untary consensus standards in lieu of government-unique standards except where inconsistent with law or other-wise impractical.

(b) The HCA is authorized to submit the determination required by OMB Circular A–119 that a voluntary stand-ard is inconsistent with law or other-wise impracticable. The HCA must sub-mit the determination to OMB through the National Institute of Standards and Technology in accordance with the Circular with a copy provided to the SPE.

[70 FR 45, Jan. 3, 2005]

411.103 Market acceptance.

(a) The head of the contracting activ-ity (HCA) may determine that offerors must demonstrate, in accordance with FAR 11.103(a), the market acceptability of their items to be offered.

(b) The contracting officer shall place a copy of this determination, signed by the HCA, in the solicitation file.

411.106 Purchase descriptions for

service contracts.

When contract personnel are to be used, the requiring official shall record on the requisition his or her deter-mination whether harm to the Govern-ment might occur should contractor

(20)

Department of Agriculture Pt. 412 personnel fail to identify themselves as

non-Government officials.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 45, Jan. 3, 2005]

411.170 Brand name or equal.

(a) A ‘‘brand name or equal’’ pur-chase description shall include the fol-lowing type of information:

(1) Identification of the item by ge-neric description.

(2) Make, model number, catalog des-ignation, or other description, and identification of a commercial catalog where it is listed.

(3) Name of manufacturer, producer, or distributor of the item and complete address.

(4) All salient characteristics of the ‘‘brand name or equal’’ product or products which have been determined by the requisitioner to be essential to the Government’s minimum require-ments.

(b) [Reserved]

411.171 Solicitation provisions and contract clauses.

(a) Contracting officers shall insert the provision at 452.211–70, Brand Name or Equal, in solicitations, other than those for construction, where ‘‘brand name or equal’’ purchase descriptions are used.

(b) Contracting officers shall insert the clause at 452.211–71, Equal Products Offered, in solicitations, other than those for construction, where the pro-vision at 452.211–70 is included.

(c) Contracting officers shall insert the clause at 452.211–72, Statement of Work/Specifications, when the descrip-tion (statement of work) or specifica-tion(s) is included in Section J of the solicitation.

(d) Contracting officers shall insert the clause at 452.211–73, Attachment to Statement of Work/Specifications, when there are attachments to the de-scription (statement of work) or speci-fications.

[63 FR 26995, May 15, 1998]

Subpart 411.2—Using and

Main-taining Requirements

Docu-ments

411.202 Maintenance of standardiza-tion documents.

Recommendations for changes to standardization documents are to be submitted through the Senior Procure-ment Executive, who will coordinate the submission of these recommenda-tions to the cognizant preparing activ-ity.

Subpart 411.4—Delivery or

Performance Schedules

411.404 Contract clauses.

(a) The contracting officer shall in-sert the clause at 452.211–74, Period of Performance, when it is necessary to specify a period of performance, begin-ning on the date of award, date of re-ceipt of notice of award, or a specified date.

(b) The contracting officer shall in-sert the clause at 452.211–75, Effective Period of the Contract, when it is nec-essary to specify the effective period of the contract.

[63 FR 26995, May 15, 1998]

Subpart 411.6—Priorities and

Allocations

411.600 Scope of subpart.

The Defense Priorities and Alloca-tion System (DPAS) excludes USDA activities (see 15 CFR 700.18(b)). USDA Contracting Officers are not authorized to place rated orders under DPAS.

PART 412—ACQUISITION OF

COMMERCIAL ITEMS

(21)

48 CFR Ch. 4 (10–1–07 Edition) 412.302

Subpart 412.3—Solicitation

Provi-sions and Contract Clauses

for the Acquisition of

Com-mercial Items

412.302 Tailoring of provisions and clauses for the acquisition of com-mercial items.

The head of the contracting activity is authorized to approve waivers in

ac-cordance with FAR 12.302(c). The ap-proved waiver may be either for an in-dividual contract or for a class of con-tracts for the specific item. The ap-proved waiver and supporting docu-mentation shall be incorporated into the contract file.

(22)

SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT

TYPES

PART 413—SIMPLIFIED

ACQUISITION PROCEDURES

Subpart 413.3—Simplified Acquisition

Methods

Sec.

413.301 Governmentwide commercial pur-chase card.

413.306 SF 44, Purchase Order-Invoice- Voucher.

413.307 Forms.

SOURCE: 64 FR 45895, Aug. 23, 1999, unless otherwise noted.

Subpart 413.3—Simplified

Acquisition Methods

413.301 Governmentwide commercial

purchase card.

USDA policy and procedures on use of the Governmentwide commercial purchase card are established in De-partmental Regulation Series 5000.

413.306 SF 44, Purchase

Order-In-voice-Voucher.

The Standard Form 44 (and the pre-viously prescribed USDA Form AD–744) is not authorized for use within USDA.

413.307 Forms.

Form AD–838, Purchase Order, is pre-scribed for use by USDA in lieu of Op-tional Forms (OFs) 347 and 348 except that use of the OF 347 and OF 348 is au-thorized when utilizing the USDA Inte-grated Acquisition System.

[70 FR 45, Jan. 3, 2005]

PART 414—SEALED BIDDING

Subpart 414.2—Solicitation of Bids

Sec.

414.201 Preparation of invitations for bids. 414.201–6 Solicitation provision.

Subpart 414.4—Opening of Bids and Award of Contract

414.404 Rejection of bids.

414.404–1 Cancellation of invitations after opening.

414.407 Mistakes in bids.

414.407–3 Other mistakes disclosed before award.

414.407–4 Mistakes after award. 414.409 Information to bidders. 414.409–2 Award of classified contracts.

Subpart 414.2—Solicitation of Bids

414.201 Preparation of invitations for

bids.

414.201–6 Solicitation provision.

The contracting officer shall insert the provision 452.214–70, Award by Lot, when multiple items are segregated into clearly identifiable lots and the contracting officer wants to reserve the right to award by item within a lot, if award in that manner would be advantageous to the Government.

Subpart 414.4—Opening of Bids

and Award of Contract

414.404 Rejection of bids.

414.404–1 Cancellation of invitations after opening.

An acquisition official at a level above the contracting officer is author-ized to make the determinations under FAR 14.404–1(c) and (e)(1).

414.407 Mistakes in bids.

414.407–3 Other mistakes disclosed be-fore award.

The authority to make the deter-minations under FAR 14.407–3(a), (b), and (d) is delegated, without power of redelegation, to the head of the con-tracting activity. The authority to make the determination under FAR 14.407–3(c) is delegated to the con-tracting officer. Each determination pursuant to FAR 14.407–3 shall have the concurrence of the Office of the Gen-eral Counsel (OGC).